TN 24 (02-18)

A. PR 18-042 North Dakota - Would Claimant be considered the child of NH under ND intestacy laws where the NH previously terminated his parental rights

Date: January 17, 2018

1. Syllabus

North Dakota courts will treat another state’s court order terminating parental rights as if it were issued by a North Dakota court. Under North Dakota law, a court order terminating parental rights of a parent severs all legal ties between the natural parent and the child, including the child’s right to inherit from the natural parent through North Dakota’s intestate succession laws.

In this case, the number holder (NH) died while domiciled in North Dakota. North Dakota would treat the North Carolina court order terminating the NH’s parental rights as if it were issued by a North Dakota court. The order severs all legal ties between the NH and child, including the child’s right to inherit from the NH through North Dakota’s intestate succession laws. Therefore, the child is ineligible for surviving child benefits under the NH’s record.

2. Opinion

Questions Presented

You asked whether K~ would be considered the child of NH R~ under North Dakota intestacy laws where the NH previously terminated his parental rights. You also asked about updating the Numident.

Short Answers

Under North Dakota law, an order terminating parental rights severs all legal ties between a parent and child. Since a court terminated the NH’s parental rights with K~, K~ is not entitled to inherit from the NH through intestacy and is ineligible for surviving child benefits under the NH’s record. This renders the question of updating the Numident moot.

Background

The NH was domiciled in North Dakota when he died in January 2017. The NH was not married to K~’s mother at the time of K~’s birth, and someone other than the NH is listed as the father on K~’s birth certificate. Genetic testing, however, appeared to indicate the NH was K~’s genetic father, and in October 2003, a county court in North Carolina found paternity based on that evidence. The court also terminated the NH’s parental rights with K~ in the same proceeding. K~’s mother subsequently applied for surviving child benefits on K~’s behalf and provided supporting documents to the field office. The documents include the North Carolina termination order, K~’s birth certificate, and a report of genetic testing.

Discussion

1. The Order Terminating Parental Rights Makes K~ Ineligible to Receive Surviving Child Benefits Under the NH’s Record

In determining the father-child relationship for purposes of survivor’s benefits, the agency looks to the intestate succession laws of the state in which the NH was domiciled when he died. 42 U.S.C.A. § 416(h)(2)(A); 20 C.F.R. § 404.355(b); POMS GN 00306.001(C)(1)(a).

The NH in this case died while domiciled in North Dakota. North Dakota’s probate code states that a parent-child relationship exists between a child and his genetic parents, regardless of the parents’ marital status. N.D. Cent. Code Ann. § 30.1-04-16 (West 2017). This parent-child relationship generally allows a child to inherit from a deceased parent through intestate succession. See id. § 30.1-04-15.

However, North Dakota also has an expansive law regarding the termination of parental rights. Id. § 27-20-46(1). A court order “terminating parental rights of a parent terminates all the parent’s rights and obligations with respect to the child and of the child to or through the parent arising from the parental relationship.” Id. (emphasis added). The North Dakota Supreme Court has held that such an order “severs all legal ties between the natural parent and the child.” Kulbacki v. Michael, 899 N.W.2d 643, 647 (N.D. 2017) (emphasis added) (quoting In re C.R.H., 620 N.W.2d 175, 180 (N.D. 2000)). Further, North Dakota courts will treat a termination order from another state’s court as if it were issued by a North Dakota court. N.D. Cent. Code Ann. § 28-20.1-02 (West 2017) (a judgment from another jurisdiction “has the same effect” as one issued by a North Dakota court); Kulbacki, 899 N.W.2d at 647-48 (citing id. (Arizona court order terminating parental rights “became a North Dakota order”)).

Here, a North Carolina court terminated the NH’s parental rights with K~. This order would be treated as if it were issued by a North Dakota court. N.D. Cent. Code Ann. § 28-20.1-02; Kulbacki, 899 N.W.2d at 647-48. The order “severs all legal ties” between the NH and K~, including K~’s right to inherit from the NH through North Dakota’s intestate succession laws. Kulbacki, 899 N.W.2d at 647 (citation omitted); see N.D. Cent. Code Ann. § 27-20-46(1). K~ is thus ineligible for child survivor benefits under the NH’s record.

2. Updating the Numident Is Moot

Since K~ does not qualify for child survivor benefits under the NH’s record,

the question of updating the Numident is moot.

Conclusion

The North Carolina court order terminated the NH’s parental relationship with K~. This order severed all legal ties between the NH and K~ under North Dakota law, including K~’s right to inherit from the NH through intestate succession. K~ is thus ineligible to receive surviving child benefits on the NH’s record. This moots the question of updating the Numident.

B. PR 09-119 Status of Child to Numberholder Based on Termination of Parental Rights in the State of North Dakota (R. J~)—Clarification of Prior Opinion 1

Date: June 18, 2009

1. Syllabus

In a North Dakota case, the termination of the number holder’s parental rights after he had established a protective filing date for benefits for those children would not preclude their entitlement to child’s benefits on his record.

2. Opinion

ISSUE

Whether the State of North Dakota’s termination of the numberholder's (NH) parental rights before he became entitled to benefits precludes his children’s entitlement to benefits?

SHORT ANSWER

No. The termination of the NH’s parental rights before his date of entitlement does not preclude his children’s entitlement to CIB. The agency's policy is to determine whether an applicant is a child of an insured at the same time it determines whether the applicant is deemed dependent on the insured. The agency can deem an applicant dependent on an insured when: 1) the applicant files an application; 2) the date the insured's period of disability began; or 3) the date the applicant becomes entitled to benefits. Here, the protective filing date of the children’s applications and the date the NH's period of disability began are prior to the date the state terminated the NH’s parental rights.

FACTS

We obtained the following facts from information that you provided and from agency systems. The applicants are the NH’s biological children. The NH applied for DIB on October 26, 2007, and listed the applicants on his application. He alleged an onset of disability date of October XX, 2007. In early March 2008, the agency awarded the NH benefits with a period of disability beginning on October 23, 2007. On March XX, 2008, the NH signed a consent form agreeing to termination of his parental rights with respect to the applicants. A North Dakota Juvenile Court terminated the NH's parental rights on that date. Five days later, Social Services filed CIB applications on the applicants' behalf. The NH became entitled to benefits in April 2008.

DISCUSSION

The applicants were the NH's children under the Act in October 2007, when they protectively filed their applications and when the NH's period of disability began.

On the date the NH filed for benefits, the State of North Dakota had not terminated his parental rights. Consequently, the applicants were the NH's children when he filed his application. By listing the applicants on his initial application for benefits, the NH protectively applied for CIB benefits on their behalf. See POMS GN 00204.010C.3. Social Services filed valid applications on the applicant's behalf within six months of their October 2007 protective filing date. 2 The agency uses the date applicants are deemed dependent on an insured (deeming point) as the date for determining whether they are children for the purpose of determining eligibility for CIB. See GN 00306.165B 3 ("[s]ince onset is a point at which the child could be deemed dependent on the NH, and at that point the adoption had not yet occurred, the adoption has no effect on determining the child's entitlement"). Deeming points include: 1) the date of application; 2) the date the insured's period of disability began; and 3) the date the applicants' entitlement began. See 42 U.S.C. §§ 402(d)(1), 416(H)(3); 20 C.F.R. §§ 404.350, 404.360; POMS RS 00203.001A, GN 00306.001A, GN 00306.007, GN 00306.100.

In this case, the application date and the NH's period of disability start date were in October 2007, prior to the termination of the NH's parental rights. Consequently, because the applicants were the NH's children for the purposes of the Act before the termination of the NH’s parental rights, we do not reach the issue of whether termination of parental rights might affect their ability to inherit from the NH.4

CONCLUSION

The applicants established a protective filing date and were the insured's children for the purposes of the Act before the State of North Dakota terminated the NH’s parental rights. Additionally, the date the NH's period of disability began is prior to the date the state terminated the NH’s parental rights. As such, the NH’s subsequent loss of parental rights does not affect the children’s entitlement to CIB.

Deana R. E~-L~
Regional Chief Counsel
By Allan D. B~
Assistant Regional Counsel
_______________

^1_/ This a clarification of our May 22, 2009 opinion on the same subject. Please disregard the previous opinion.

2_/ A Title II applicant’s protective filing date becomes the application date, provided he or she files a valid application within the six-month protective filing period. See POMS GN 00204.010.C.3.

3_/Although GN 00306.165 expressly applies to adoption, not termination of parental rights, we confirmed with the Office of Disability and Income Security Programs (specifically Peter W~) that the same policy exceptions would apply to termination of parental rights.

4_/Likewise, we need not address whether termination of parental rights would affect initial entitlement under the Act, i.e., whether a child could inherit from a biological parent under North Dakota law when the biological parent's parental rights had been terminated prior to the child’s application for benefits on the biological parent’s account We are happy to review and provide guidance in the future if the issue arises.